Denis Mougenot v SMEC Australia Pty Ltd

[2021] FWC 4838

[2021] FWC 4838

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Denis Mougenot
v
SMEC Australia Pty Ltd
(U2021/2633)

COMMISSIONER SIMPSON BRISBANE, 10 AUGUST 2021

Application for unfair dismissal – Valid reason – Procedurally Fair – Harshness considered – Application dismissed.

[1] On 30 March 2021 Mr Denis Mougenot made an application under s.394 for an unfair dismissal remedy against SMEC Australia Pty Ltd (the Respondent). The Form F2 identified that Mr Mougenot was represented by Mr Garry Dircks of Just Relations Consultants.

BACKGROUND

[2] Mr Mougenot commenced employment with the Respondent on 29 February 2016 and was dismissed on 9 March 2021. The remedy sought by Mr Mougenot in his Form F2 was that the Respondent “learn to care for people, and not abusing them, taking advantage of them, understanding them.” Mr Mougenot said in his Form F2 there was no clear reason given for dismissal and no dismissal letter provided. He also said that there was no valid reason for the dismissal related to conduct or capacity, no misconduct and no lack of capacity, no notification or opportunity to respond and the dismissal was harsh in the circumstances including a long period of good service.

[3] In its Form F3 response to the application the Respondent advised it was represented by Ms Brooke Pendlebury of Pendlebury Workplace Law. Mr Mougenot was employed as a Senior Designer – Water Infrastructure. The Respondent advised it had over 1500 employees and was not a small business employer.

[4] The Respondent said that in Australia, SMEC’s core service offering covers the lifecycle of a project across urban renewal, transport design and energy sectors, providing specialist expertise and technology-driven solutions across road, rail, aviation, greenfield communities, hydropower and solar energy, geotechnics and tunnelling, environmental services and asset management. The Respondent said Mr Mougenot was employed in the Water Infrastructure Design team in Brisbane. This team is responsible for carrying out the design of water and wastewater network infrastructure, including pipelines and network facilities.

[5] Conciliation was unsuccessful and the matter was referred to me. The matter was listed for a Directions Hearing at 3pm on 11 May 2021. There was no appearance at the directions hearing for Mr Mougenot. At 3.50pm on 11 May 2021 a Form 54 Notice from Mr Dircks of Just Relations Consultants ceasing to act for Mr Mougenot was filed.

[6] On 12 May 20021 Directions were issued for the filing of evidence and submissions and for the matter to be heard on 21 June 2021. The following correspondence was sent to the parties with those directions:

“Dear Mr Mougenot

I refer to the above matter and Directions Hearing before Commissioner Simpson on 11 May 2021 at 3:00pm. Please see attached Notice of Listing sent to you on 23 April 2021.

Attempts were made to contact you on your mobile number to connect you to the call, however the attempts were not successful.

Please be advised the Directions Hearing proceeded in your absence.

The Commissioner directs you to advise the Commission, why you failed to appear at the Directions Hearing and whether you intend to pursue the application. Please provide reasons in writing as soon as possible, but by no later than 5:00pm Tuesday 18 May 2021. The Commissioner advises if you wish to press the application, Directions have been issued and the matter has been set down for Hearing on Monday 21 June 2021. Please see attached Notice of Listing and Directions issued by the Commissioner.

Kind regards,

………………”

[7] No response was received from Mr Mougenot and the matter was listed for a Non-compliance Hearing on 28 May 2021.

[8] On Tuesday 25 May 2021 Mr Mougenot sent an email to chambers as follows:

“Hi there

OK for this 28 of may

Sorry, I was on "holiday" on some island with no internet and no phone connections (and no Fish&Chips) those last weeks.... (my lady trying to address my depression...).

Denis”

[original text kept]

[9] At the Non-compliance Hearing Mr Mougenot provided some further explanation as to his failure to appear at the Directions Hearing on 11 May. I decided to allow Mr Mougenot to continue his application and amended the Directions. Mr Mougenot provided some further information following the non-compliance hearing as follow:

“Thanks for extending the deadline btw.

1. NOT SEEING THE EMAIL SENT ON THE 12TH OF MAY

To confirm our stay at Heron Island, find attached the tax invoice with date of our stay between the 10th and 14th of may..

Note that we took 3 days to get to Gladstone, visiting things on the way up, and 2 days to come back, and that I had not checked my emails on the way back (and before) as yes, with depression and holiday mode and tons of junk mail in my 26years old email address, I missed the email of yours sent on the 12th of may scheduling an appointment for the 21st.

2. ALSO, NOT SEEING GARRY DIRK EMAIL - I STAND CORRECTED - Same dynamic from my side in checking emails in those time as above.

There too I stand corrected. Gary send an email about him stopping working on this case. Hi email sent on the 11th of may, not mentioning it in the email itself, but in the attachment.

I see that you are both included in his email.

I recognise my "mistake/lack of attention" on those emails but in my current case (depression, feeling powerless, and loosing faith in human life as I do not see people trying to understand, and just following their agenda to the expense of other).

You would know too that I went thru some chemo sessions due to colon cancer (getting better now), so things are harder to focus on and more tiredness.

So thanks again for extending the dead line.

Denis
…………”

[10] Mr Mougenot indicated he did not wish to be reinstated but did seek compensation. At the Hearing Mr Mougenot said he would consider going back to work for the Respondent if the Chief Executive Officer conducted training of all staff and to assist the Respondent change its culture. The Respondent sought and was granted leave to be represented in the matter at a Directions Hearing. The matter was heard in Brisbane in person on 28 June 2021.

[11] Mr Mougenot represented himself and Mr Bruce Miles of Counsel represented the Respondent appearing from Sydney by video-link, instructed by Ms Quinlan from the Respondent in Brisbane. The commencement of the Hearing was delayed for a considerable period by issues with the FWC video conference system which persisted intermittently throughout the Hearing, however the parties agreed to continue, and the evidence and submissions were ultimately concluded.

EVIDENCE AND SUBMISSIONS

[12] On 4 June 2021 Mr Mougenot filed a statement 1 and an Outline of Argument. He filed a further Outline of Argument document 16 pages in length with attachments 1 to 22 on 22 June 2021. Mr Mougenot adopted this document as evidence to the extent it dealt with matters of fact.2 Mr Mougenot accepted this document was in the main the same as a document he emailed to some staff of the Respondent in June 2021, several weeks before the hearing.

[13] On 20 June the Respondent filed an Outline of Submissions and statement from Mr Adam Cullen, 3 Team Leader, Water Infrastructure Design, Brisbane, and also a statement from Ms Ciara Otter,4 Manager, Water Infrastructure Design, Brisbane, with the Respondent.

[14] In his first statement of evidence Mr Mougenot included that issues concerning the work standards could not be understood or appreciated by Mr Cullen, not being a drafter himself. Mr Mougenot said many points showed little empathy, as the stress of budgets and deadlines, put pressure on all.

[15] Mr Mougenot said understanding psychology is important, and a lack of trying to understand, leads to misjudgement, mistreatment and lack of care. Mr Mougenot said the Performance Improvement Plan (PIP) meetings organised by the Respondent had no “constructivity”, leading him to believe that the Respondent had only one agenda, which was to use this procedure to terminate his employment cheaply. Mr Mougenot said he believed one reason to sack him is to save money, but also some possible other reasons included him having raised issues to address, that may have not worked in the Water Team leaders’ interest, and also not being understood, and thus, being misjudged.

[16] Mr Cullen said evidence and examples were used in the PIP to help Mr Mougenot understand instances where he had exhibited performance and behavioural issues and how he could improve in these situations.

[17] Mr Cullen said the Respondent has developed Computer Aided Design (CAD) standards to enable work to be collaboratively shared between drafters in a consistent format. Mr Cullen said the PIP documented examples where Mr Mougenot did not follow CAD standards to the detriment of other senior design drafters within the team.

[18] Mr Cullen referred to Mr Mougenot’s statement where he said “Many Points that show little empathy.” Mr Cullen said he disagreed with this and said that empathy was constantly shown to Mr Mougenot and he felt hurt by Mr Mougenot’s constant derogatory and emotive comments against himself and the team. Mr Cullen gave an example of where empathy was shown toward Mr Mougenot in an email he provided with his evidence.

[19] Mr Cullen referred to Mr Mougenot’s statement where he said “they had only one agenda. To use this procedure to retrench me the cheap way.” Mr Cullen denied this and said that there was no agenda against Mr Mougenot and the PIP was initiated to identify issues of performance concerns for Mr Mougenot and to try to help Mr Mougenot improve these poor behaviours.

[20] Mr Cullen said that Mr Mougenot was dismissed due to ongoing performance and behaviour issues as detailed through the PIP and the Annual Performance Appraisal System.

[21] In his outline of argument Mr Mougenot said he did not agree that he engaged in misconduct and he saw others “reacting” to stress in a negative way. Mr Mougenot said he never “yelled”, and “never wrote the bad way”.

[22] Mr Mougenot said the alleged misconduct was only seen from one perspective. Mr Mougenot said he was “tense”, but not to the point of “yelling”. Mr Mougenot said that he knew that Ms Ciara Otter misunderstood him at one meeting and said he was disrespectful to Mr Cullen, but Mr Mougenot questioned whether she could see that Mr Cullen with the ongoing twisted list of points against him, is even more than disrespectful. Mr Mougenot said to him it is inhuman, and he did not want to see that happening again towards other workers under Mr Cullen and this team.

[23] Mr Mougenot submitted that the Commission should take into account that he was always under pressure, stress, and related psychological reactions, leading to more misunderstanding, blaming and each to “defend” themselves.

[24] Mr Mougenot said he gave his own time to change a few things to be the way he thought it should be. He said he always followed standards, and common practice not listed in any standards.

[25] Mr Mougenot said what he did was to improve performance, efficiency, and productivity, in saving time, but not at the expense of the design which is most important. He said the method leading there is what mattered to him, to meet the demand.

[26] The Respondent said Mr Mougenot was terminated as a result of a sustained period of unsatisfactory performance, including:

•  ineffective communication (verbal and written)

•  inability to follow SMEC technical design standards

•  inability to accept reasonable management instruction

[27] The Respondent said the immediate cause of the termination was a telephone call from Mr Adam Cullen to Mr Mougenot on 1 March 2021, in which Mr Mougenot abused Mr Cullen, including describing him as acting like a criminal, lacking empathy and being out to get Mr Mougenot.

[28] The Respondent said this behaviour was in the context that, over an extended period of time Mr Mougenot demonstrated ineffective communication, inability to follow SMEC technical design standards and an inability to accept reasonable management instruction.

[29] The Respondent submitted that it had raised these issues with Mr Mougenot and given Mr Mougenot the opportunity to address these concerns since September 2018. The Respondent said Mr Mougenot improved his performance in relation to SMEC technical design standards to an acceptable level, however he demonstrated that he was unwilling or unable to perform at the required standard regarding his communication, particularly with his team leader Mr Cullen.

[30] The Respondent said the purpose of Mr Mougenot’s position was:

“Planning and undertaking complex design elements of engineering projects in order to meet client requirements, design knowledge utilising sound civil design principles and specialist software skills for the preparation of civil design models for projects to support the ongoing activities of a leading multi-disciplinary engineering consultancy.”

[31] The Respondent said the key accountabilities of Mr Mougenot’s position included to:

a. “Ensure that design tasks undertaken meet appropriate technical standards and the requirements of the client and SMEC”.

b. “Proactively collaborate with appropriate team members, contributors and stakeholders to maintain quality, timeliness and co-ordination of project deliverables”.

[32] The Respondent said that the skills/knowledge required for Mr Mougenot’s position included:

a. “Ability to interpret and communicate information of a complex nature”;

b. “Excellent interpersonal and communication skills to work effectively within a diverse and multi-disciplinary environment”;

c. “Skills in undertaking a co-operative and flexible work style to work in a team environment”.

[33] Mr Cullen said in his role he knows Mr Mougenot as he has been in his team since joining SMEC and has reported to Mr Cullen for the remainder of the duration of his employment with SMEC after Mr Cullen took over the role of Acting Team Leader on 16 November 2016.

20 August 2018

[34] Mr Cullen said in his statement that on or about 20 September 2018, Mr Mougenot created and distributed an email to a client, that represented the Respondent in an unprofessional light and damaged the Respondents reputation. The email said,

“…. You guys, have to learn to allocate either more time, or resources…I feel tired….with the ongoing stress of delivering…. Never enough……” and, “I mentioned to you about the other job, so did Adam… You guys expect too much …I am tired”.

[35] Mr Cullen said on the same day, Mr Mougenot approached his desk and started to yell at him in front of his colleagues and clients that were in the office at the time. Mr Cullen said Mr Mougenot was abusing him in relation to not providing him with support and he was saying words to the effect “you have no empathy or understanding”. Mr Cullen said he asked Mr Mougenot to speak with him in a reasonable manner and to take the discussion to a meeting room, however he claimed Mr Mougenot initially refused and continued to yell at him.

[36] Mr Cullen said that as a result of this conduct, he spoke with Ms Nia Nicholas, People & Culture Business Partner and he believed with Ms Ashley Zanetti, Manager Water Dams and Hydro QLD. Following these discussions it was determined that they would speak with Mr Mougenot in relation to his conduct.

[37] Mr Mougenot said he encountered his first major problem with Mr Cullen a few years ago. Mr Mougenot said in this case, they were not trying to understand, but only to judge, based on Mr Cullen’s own stress with a customer where Mr Mougenot said he found later on, within a file on the server, that Mr Cullen and the customer were fighting over money and variation.

[38] Mr Mougenot said the work was for another company located in the same building as the Respondent and belonging to the same higher company owning the Respondent (SJ Group). Mr Mougenot said they were not the ultimate customer, but another design company giving some design work to the Respondent’s water team.

[39] Mr Mougenot said he got into trouble for writing in an email that he was "tired". Mr Mougenot said this one week after the "Are you OK?" day. Mr Mougenot said he was sent to the ‘naughty corner’ for a "Code of Conduct" session, and no one was trying to understand the drafter's view and that Mr Cullen was twisting things, saying that he yelled at him when he never yelled at him, but was certainly not laughing under this stress. Mr Mougenot also said he was working 52 hours per week and paid for 38.

[40] Mr Mougenot said across his desk were 2 other drafters from another team, who were having fun, setting drafting approach/standards to address their future new jobs and their leader who would pass by saying "no overtime in my team". Mr Mougenot said they had so many aspects he could contribute to where he could see they had little experience on those tasks, and was sharing his views and understandings with them, on top of his own stressful workload. Mr Mougenot said one of the drafters sitting nearby saw him not helping fully and expressing his stress, and that the drafter reported to Mr Cullen later on that he was negative, which Mr Cullen used again against him.

[41] Mr Mougenot said on the his last day, Tony and his team were asking for changes where he had already worked 52 hours in that week and Tony was expecting those changes to be done in few minutes, when in fact, the requested alignments were completely different, repositioned elsewhere by their drafters, and would require Mr Mougenot to update a long section that would take him at least half a day if not more, as air valves, scours, clearances, and more needed to be updated. Mr Mougenot said these were not the minor changes as they had been described to him and this additional work was required on top of another job that had a competing deadline. Mr Mougenot said there was no understanding of the time it would take to complete this work.

28 September 2018 Meeting

[42] Mr Cullen said that on 28 September 2018, Ms Nicholas and himself met with Mr Mougenot to allow him an opportunity to respond to the concerns with respect to the email he had sent to the client and with respect to his conduct towards Mr Cullen in the office.

[43] Mr Cullen said Mr Mougenot had been provided with a letter informing him of the meeting and he was invited to bring a support person with him to the meeting.

[44] Mr Mougenot said there was no acknowledgment, understanding of what he reported to Mr Cullen. Mr Mougenot said he only saw him stressed and turned it into a “yell”. Mr Mougenot said he never “yelled” at him and was just speaking in a stressed state.

3 October 2018 warning

[45] Mr Cullen said after the meeting Mr Mougenot was issued with a warning in relation his conduct which was detailed in an email from Mr Cullen to him, dated 3 October 2018, and Mr Cullen said Mr Mougenot was asked, in the future, to:

a. be courteous and responsive in dealing with colleagues and clients,

b. demonstrate behaviours which were consistent with SMEC’s Code of Conduct, and

c. undertake SMEC’s Code of Conduct module in Learn Connect before 26 October 2018.

[46] Mr Cullen provided a copy of the email dated 3 October 2018 with his statement. Mr Cullen drew attention in his evidence to the following statement contained in the warning;

“SMEC is committed to promoting an inclusive organisation culture, and strives to drive a workplace where people are treated with dignity, respect and consideration at all times. SMEC does not condone any behaviour which may be perceived as bullying, intimidation, discrimination, or any form of workplace harassment.”

14 November 2019 Meeting

[47] Mr Cullen said on or about 14 November 2019, he had a telephone discussion with Mr Mougenot regarding resource planning and helping him prioritise his work. Mr Cullen said during the call Mr Mougenot became aggressive and would not listen to Mr Cullen speak. Mr Cullen said Mr Mougenot started to become derogatory towards him and he was intimidating. Mr Cullen said that he advised Mr Mougenot that his behaviour was unacceptable and Mr Cullen said he proceeded to end the phone call.

[48] Mr Cullen said Mr Mougenot then messaged him through Skype and accused him of being “autistic” and having “no empathy to other people”. Mr Cullen provided a copy of this message on Skype dated 14 November 2019 with his statement.

[49] Mr Mougenot said emotional intelligence is an quality the Respondent claims is important. Mr Mougenot said he accepts his English is not good. He claimed he did not say Mr Cullen is autistic and that “it reminded him”, referring to reminding him of a person with autism.

[50] Mr Mougenot was referred in the evidence to a ‘chat’ where Mr Mougenot put the question to Mr Cullen, “Are you autistic?” Mr Mougenot accepted he sent that message. Mr Mougenot agreed that he thought Mr Cullen lacked emotional intelligence and that he had said that.

18 November 2019

[51] Mr Cullen said that on or about 18 November 2019, he had a meeting with Mr Mougenot, and at this meeting, Mr Cullen said he advised Mr Mougenot that his behaviour on Thursday, 14 November had been unacceptable and unprofessional. Mr Cullen said he also discussed ways Mr Mougenot could improve his time management and communication. Mr Cullen said that he recalled that he detailed the contents of this meeting in an email File Note sent to Mr Mougenot.

December 2019 Year End Performance Appraisal

[52] Mr Cullen said that in the December 2019 Year End Performance Appraisal processes, which he conducted with Mr Mougenot, his performance and behaviour was discussed and reviewed. Mr Cullen said Mr Mougenot received a Performance Rating of “Below Expectations” (i.e. D rating) and this was due to a number of factors including:

a. Communication - Mr Mougenot needs to work on his communication skills when communicating project scope requirements and understanding of team members contrasting views;

b. Professionalism - Mr Mougenot can struggle with scope constraints and stress management;

c. Partnership - Mr Mougenot needs to work on collaboration with colleagues to deliver consistent work among the group;

d. Purpose - Mr Mougenot needs to work on his positive attitude and perseverance under stress.

[53] Mr Cullen provided a copy of the December 2019 Year End Performance Appraisal with his statement.

[54] Mr Mougenot said in the past 25 years in Brisbane, he had never experienced this, and had only ever received positive feedback, having met expectations in all the companies he worked in, with encouragement and learning. Mr Mougenot said Mr Cullen didn't understand the stressful situation he was in, the culture in this team, and the effects this had on Mr Mougenot other drafters.

[55] Ms Otter said she became aware of performance and behaviour issues with Mr Mougenot on or about January 2020 when she took on the role of Water Infrastructure Manager, Brisbane.

7 May 2020 First and Final Warning Letter

[56] Mr Cullen said on or about 7 May 2020, a First and Final Warning Letter was issued to Mr Mougenot. Mr Cullen provided a copy of this warning letter with his statement. Mr Cullen said this followed a meeting on the morning of 7 May 2020 to address two emails sent by the Mr Mougenot on 6 May 2020 (entitled “Coombabah” and “Denis Mougenot – Asking to see the dynamic/virus stress”) which were copied to an employee of a competitor organisation that contained SMEC’s commercially sensitive and confidential Company information. Mr Cullen provided a copy of the emails with his statement.

[57] Mr Cullen said these actions revealed poor judgment on the part of Mr Mougenot and exposed SMEC to risk. Mr Cullen said at the meeting present was himself, Ms Ciara Otter, Manager, Water Infrastructure Design, Brisbane (Acting), Ms Julie Bartholomew, Principal Business Partner, People & Culture, and Mr Mougenot.

[58] Mr Cullen said Mr Mougenot had been advised that he could attend the meeting with his support person, however Mr Mougenot declined to bring a support person to the meeting with him.

[59] Mr Cullen said at the meeting Mr Mougenot was asked to explain his actions with respect to the email he had sent dated 6 May 2020. Mr Cullen said Mr Mougenot’s responses included, denying any communication issues and blaming others for his actions. Mr Cullen said Mr Mougenot’s responses were unsatisfactory, and most particularly given the previous issues with him in relation to communications.

[60] Mr Cullen said it was decided that Mr Mougenot’s performance and conduct was consistently poor and that a Performance Improvement Plan (PIP) was to be commenced. Mr Cullen said the PIP was to be formally commenced in order to address Mr Mougenot’s:

•  ineffective communication, both written and verbal,

•  inability to follow SMEC Technical Design Standards, and

•  inability to accept reasonable management instruction.

[61] Mr Cullen said he explained to Mr Mougenot that he would be able to provide support and guidance in assisting Mr Mougenot to improve his performance. Mr Cullen said he also told Mr Mougenot that his performance would be monitored by Mr Cullen and assessed on an ongoing basis until such time as Mr Mougenot had addressed the performance issues. Mr Cullen said that it was made clear that Mr Mougenot must attain and sustain an acceptable standard of work performance at “Meets Expectations” or higher, as noted in the PIP under column 2, “Required level of performance/target”.

[62] Mr Cullen said that Mr Mougenot was advised that he was expected to work at the level required as per the “Career Pathways at SMEC: Guidelines”. Mr Cullen provided a copy of the Guidelines and Mr Mougenot’s position description with his statement. The warning letter included the following:

“if your performance does not meet the standard required, further formal action may be taken which may include the termination of your employment”.

[63] Mr Cullen said Mr Mougenot was provided with a copy of the May PIP document and Mr Mougenot provided marked-up comments to the May PIP and provided them to Mr Cullen.

[64] Mr Mougenot asked Mr Cullen for the specifics of the alleged concerns with his communication skills. Mr Cullen referred to attachment 10 of his witness statement which was the May 2020 PIP document and the detailed list of performance concerns and review comments in the document.

[65] Ms Otter said she was aware that on or about 7 May 2020, a First and Final Warning Letter was issued to Mr Mougenot by Mr Cullen and that this letter was issued following a show cause meeting that she attended along with Ms Julie Bartholomew, Principal Business Partner, People & Culture, and Mr Mougenot. Ms Otter said Mr Mougenot had been advised to attend the meeting with his support person, however Mr Mougenot declined to bring a support person to the meeting with him.

[66] Ms Otter said that at the meeting Mr Mougenot was asked to explain his actions with respect to two emails he had sent on 6 May 2020 (entitled “Coombabah” and “Denis Mougenot – Asking to see the dynamic/virus stress”) which were copied to an employee of a competitor organisation that contained the Respondents commercially sensitive and confidential Company information.

[67] Ms Otter said that Mr Mougenot’s responses included not understanding that his actions were inappropriate, and Mr Mougenot’s responses were unsatisfactory, and most particularly given the previous issues with him in relation to communications.

[68] Ms Otter said that in consultation with herself, Mr Cullen decided that Mr Mougenot’s performance and conduct was consistently poor and that a PIP was to be commenced. Ms Otter said Mr Cullen explained to Mr Mougenot the PIP process and that he would provide support and guidance in assisting Mr Mougenot to improve his performance, and that Mr Cullen also explained the expectations of Mr Mougenot as part of the PIP process and that Mr Mougenot must attain and sustain an acceptable standard of work performance at “Meets Expectations” or higher, and that he was expected to work at the level required in the “Career Pathways at SMEC: Guidelines” and his position description.

[69] Ms Otter said Mr Mougenot was provided with a copy of the May PIP document and the letter of formal warning.

[70] Mr Mougenot referred to an email of 6/5/2020 regarding “Gravity Sewer Long Section Direction.msg” which clarified there were no standards and identified the need for a CAD manager as there were none in the water team.

[71] Mr Mougenot complained about a lack of a reply regarding issues and the Respondent not trying to work together on understanding drafters issues. Mr Mougenot said he did follow standards and respected the client standards contrary to what he had seen from some younger drafter’s work.

[72] Mr Mougenot said he explained in an email of 9 May 2020 the benefit of having combined files when being only drafter to be more efficient, productive, and to save time, and

any, even single file drawing, needs to be changed to suit the customers standard.

[73] Mr Mougenot said the work he did on Coombabah was minor work. Mr Mougenot said in relation to the sending of the email to include Ms Julia Taylor from Jacobs, it was a mistake of his in that he typed the wrong name when he was sending the email and it went to the wrong person by accident and it was just a mistake. Mr Mougenot accepted Ms Taylor worked for Jacobs who competes with the Respondent. Mr Mougenot said the email address of an employee of a competitor would have been in email addressed in his computer because that person would have sent an email to him previously at some stage. Mr Mougenot said it was not sent intentionally and if it had been done he would have sent it as a blind copy.

[74] Mr Mougenot was referred to a document where he made comments and annotations on the warning letter. Mr Mougenot accepted from May 2020 he was aware the termination of his employment was possible.

[75] Mr Mougenot said it was claimed by Mr Cullen that he did not follow instructions however there was no CAD manager, and there different ways drafting work could be done and he was not focussed on presentation but more the important issues and if Mr Cullen worked constructively with him this would have reduced the stress.

[76] Ms Otter said at all times factual evidence was presented to Mr Mougenot in relation to his behaviour with documented evidence, however, Mr Mougenot failed to understand or appreciate that there was an issue. Ms Otter said in regard to lack of “empathy” and the stress of budget and deadlines, that Mr Mougenot’s key areas for improvement were about how he communicated and accepted reasonable management instruction, within projects or otherwise.

[77] Ms Otter said Mr Mougenot continued to not understand that the issues were in his behaviour and not related to other people. Ms Otter said in regard to her CAD understanding she originally worked carrying out CAD work as a graduate engineer and had led multiple design teams with significant CAD requirements over the last 17 years. Ms Otter said throughout these projects she had been intimately involved in CAD activities, technologies, requirements, standards and outputs.

10 June 2020 first PIP Review

[78] Mr Cullen said that on the morning of 10 June 2020, the first PIP Review was held to evaluate Mr Mougenot’s performance since the meeting held on 7 May 2020. Mr Cullen said at the meeting present were Ms Otter, Ms Bartholomew, Mr Mougenot and himself. Mr Cullen said Mr Mougenot elected not to bring a support person with him to the review meeting. Mr Cullen provided with his statement a copy of this June PIP document.

[79] Mr Cullen said in this review, Mr Mougenot met the expectations of following SMEC’s technical design standards but did not meet the expectations for verbal and written communication/s and the ability to accept and follow reasonable management instruction. Mr Cullen said at the meeting they discussed, numerous examples of poor communication and not meeting reasonable management instruction that has occurred following the first PIP meeting and discussed ways in which these behaviours could be improved. Mr Cullen said Mr Mougenot signed the PIP document of 10 June 2020 and was provided with a copy of the document.

[80] Ms Otter said that on the morning of 10 June 2020, she attended Mr Mougenot’s first PIP review meeting to evaluate Mr Mougenot’s performance since the meeting held on 7 May 2020 and also present at the meeting was Mr Cullen, Ms Bartholomew and Mr Mougenot. Ms Otter said Mr Mougenot again elected not to bring a support person with him to the review meeting.

[81] Ms Otter said during this review, it was explained by Mr Cullen that Mr Mougenot had met the expectations of following SMEC’s technical design standards but did not meet the expectations for verbal and written communication/s and the ability to accept and follow reasonable management instruction and a further review meeting was scheduled for 20 July 2020. Ms Otter said examples of where he had not met communications expectations or management instruction during the review period were presented and discussed.

[82] Mr Mougenot said he never understood what CAD standards he was supposed to not be meeting. He accepted Mr Cullen said he had improved in this area however he said Mr Cullen did not have expertise in this area. Mr Mougenot said Mr Cullen did not come to him with issues and try to support him with those issues.

[83] Mr Mougenot accepted he was aware that he could have brought a support person to this meeting but he chose not to, and he also accepted he was aware he could have brought a support person to each of the meetings.

20 July 2020 PIP Meeting cancelled

[84] Mr Cullen said the next PIP review was scheduled for 20 July 2020 but was rescheduled to 27 August 2020.

27 August 2020 PIP Meeting cancelled

[85] Mr Cullen said on the morning of 26 August 2020 prior to the PIP meeting, Mr Mougenot advised the Respondent that he was required to have a colonoscopy. This colonoscopy led to a subsequent cancer diagnosis. As a result of this medical diagnosis, Mr Mougenot was off work on sick leave from 27 August 2020 to 15 September 2020 in order to manage and address his health concerns.

[86] Ms Otter said the next PIP review was rescheduled from 20 July 2020 to 27 August 2020, however, on the morning of 26 August 2020, before the PIP review meeting, Mr Mougenot advised that he was required to attend a medical appointment and the meeting did not proceed.

Pause of Performance Review

[87] The Respondent said all Performance related reviews that were part of the PIP were paused temporarily, from 26 August 2020. The Respondent said in or around this time, and prior to Mr Mougenot’s return to work from his period of sick leave, the Respondent requested that Mr Mougenot’s treating medical practitioner provide confirmation of Mr Mougenot’s medical fitness to return to work, and to determine whether any modifications for his role would be required.

[88] Mr Cullen said Mr Mougenot returned to work on 15 September 2020 following Mr Mougenot’s doctor’s advice that he was fit to return to work from home. Mr Cullen said Mr Mougenot requested a flexible working arrangement and working from home to accommodate his recovery from the medical treatment, and Mr Mougenot also advised that he was unsure how he would recover following the medical procedure and during Chemotherapy (which was to last for 6 months) and requested a flexible work arrangement with agreement to take sick leave as required rather than a formal reduced hours arrangement.

[89] Mr Cullen said he agreed to accommodate Mr Mougenot’s request for flexible working arrangements from home, and it was agreed that following a few Chemotherapy treatments (starting the 8 August 2020 every two weeks) that a formal agreement would be put in place once a better understanding of recovery was understood. Mr Cullen said he kept in regular communication with Mr Mougenot to ensure workload was managed effectively during this time.

[90] Mr Cullen said in or around November 2020, he spoke to Ms Bartholomew regarding Mr Mougenot’s current work arrangements and it was considered important to ensure that Mr Mougenot was cleared as fit to return to his full duties, and they wanted to understand if there were any matters they could assist him with, or modifications to his work, to support his safe return to work. Mr Cullen said this stage Mr Mougenot had only returned to working from home and not to the office.

[91] Mr Mougenot asked Mr Cullen why he told him he should book his time on sick leave. Mr Cullen said what he was referring to at the time was that if Mr Mougenot was working on projects it is okay to make up time, but he did not expect employees to make up time on weekends if there was no work to be performed on weekends. Mr Cullen said if there were times you are not at work between 8am and 6pm Monday to Friday (because you were sick) he did not expect work to be performed on weekends to make up the time if he was not working during the week because he was sick.

[92] Mr Mougenot asked Mr Cullen why he was not allowed to work on weekends when he had been sick. Mr Cullen said the email was asking Mr Mougenot to advise whether he wished to work on weekends. Mr Cullen said originally when Mr Mougenot started back it was intended to allow Mr Mougenot to work when he wanted however all the Respondent was trying to do was to ensure the arrangements were the same for Mr Mougenot as for others working at home, so the Respondent knew when he was working. Mr Mougenot said it was about informing the employer so it knew.

[93] Ms Otter said Mr Mougenot was off work on sick leave from 27 August 2020 through to 15 September 2020 and all performance related reviews that were part of the PIP were paused temporarily, from 26 August 2020. Ms Otter said Mr Mougenot returned to work on 15 September 2020, after being cleared for work by his doctor and worked from home through to the end of April 2021.

[94] Mr Mougenot said as he had to adjust to the chemotherapy due to a stage 3 bowel cancer, they had organised a flexible work arrangement, which had become kind of normal after due to the COVID-19 pandemic. Mr Mougenot said since a side effect of the chemo is to make you tired, and since he had no physical energy to do any physical work around the house, or even going out, his best place was to be on the computer, achieving things there. Mr Mougenot said this therefore meant working on the weekends to make his 38 hour week as he was sleeping every day for few hours during the week.

[95] Mr Mougenot said this was perfect for him and for the Respondent, as he could still do his 38 hours, and it was it keeping him busy and happy working.

[96] Mr Mougenot said in the last few weeks Mr Cullen asked him to work only during the week, not on the weekends, and to do his 7.6 hours during those days with no understanding that working weekends helped him overall and even after he shared this information with Mr Cullen a few times.

[97] Mr Mougenot said prior to his cancer treatment, when circumstances arose where weekend work was required to meet a deadline, it was fine. Mr Mougenot said however in this case, he was in trouble for in working hours “in lieu”.

[98] Mr Mougenot said to show that Mr Cullen’s view was always about saving money and not seeing the other side, in 2 phone calls, he asked Mr Mougenot to charge his time on his sick days. Mr Mougenot said he only had 5 days left on his sick days then.

[99] Mr Mougenot said he replied to Mr Cullen’s call by an email, saying that those sick days are like his insurance for when he is sick, and not to be used for hours spent on work or CAD libraries. Mr Mougenot said this was a few weeks before the end of his chemotherapy treatment, and each session was making him feel worse. Mr Mougenot said he was expecting to have to take sick days then.

10 November discussion between Mr Cullen and Mr Mougenot

[100] Mr Cullen said on or about 10 November 2020, he spoke to Mr Mougenot and discussed his return to full duties. Mr Cullen said he explained to Mr Mougenot that the Respondent requested that he provide a medical clearance from his treating doctor, to ensure that he was fit to return to his full duties and to clarify whether he was able to work full-time hours, at the office, or if he needed to work from home. Mr Cullen said he also put his request into writing for Mr Mougenot and provided a copy with his statement.

[101] Mr Cullen said Mr Mougenot was annoyed by the request and refused. Mr Cullen said he understand that Ms Otter and Ms Bartholomew spoke to Mr Mougenot again on or about 11 November 2020, in relation to the request for information from his treating doctor.

11 November 2020 Meeting

[102] The Respondent said that on 11 November 2020, Ms. Otter and Ms. Julie Bartholomew, People & Culture Business Partner, met with Mr Mougenot to explain to him the reasons why the Respondent requested a medical clearance from his doctor, for a safe return to work. The Respondent said at this meeting, it was also confirmed with Mr Mougenot that the PIP process was on a pause until he was fully fit.

[103] Mr Cullen said during their discussion on or about 11 November 2020, he understood that Ms Otter and Ms Bartholomew also confirmed with Mr Mougenot that the PIP process had been, and would continue, on a pause until he was fully fit.

23 November 2020 Return to Work Plan Implemented

[104] Mr Cullen said that on or about 23 November 2020, Mr Mougenot’s return to work plan was implemented and he remained working from home. Mr Cullen said Mr Mougenot had provided a medical certificate from his treating doctor in relation to his return to duties.

[105] Mr Cullen said on or about 23 November 2020, Mr Mougenot’s doctor provided written confirmation that he was fit for work as at 23 November 2020, and accordingly, the second PIP review meeting was rescheduled, now for 10 February 2021, in order to allow Mr Mougenot time to work on the expected outcomes contained in the June 2020 PIP document.

[106] Mr Cullen said he is aware that following on from Mr Mougenot’s medical clearance and certificate from his doctor in November, he entered a Flexible Working Agreement (“FWA”) with People & Culture that was effective for the period 16 September 2020 to 30 April 2021. Mr Cullen said this FWA meant that the Respondent agreed for Mr Mougenot to work from home 5 days a week for this agreed period. Mr Cullen said the paperwork documenting the FWA was issued to Mr Mougenot on 11 December 2020, and he provided a copy of the FWA with his statement.

[107] Ms Otter said on or about 23 November 2020, Mr Mougenot returned to full duties, again following clearance by his doctor, and the second PIP review meeting was rescheduled, for 10 February 2021.

December 2020 Year End Performance Appraisal

[108] Mr Cullen said on or about 11 December 2020 he conducted with Mr Mougenot his Year End Performance Appraisal, whereby Mr Cullen assessed Mr Mougenot’s performance and behaviour, and this was discussed. Mr Cullen said Mr Mougenot received a Performance Rating of “Below Expectations” (i.e. D rating).

[109] Mr Cullen said this was due to a number of factors including:

a. Communication – improvements required to ensure communication is of a professional standard acceptable to a senior designer;

b. Integrity – needs to take personal responsibility for all actions and outcomes;

c. People – needs to work on his interaction with others to ensure that his intended message is received without negative connotations;

d. Partnership – needs to work on his communication style to enhance personal partnership with colleagues;

e. Purpose – needs to work on his positivity in communication and interactions to promote SMEC and colleagues.

[110] Mr Cullen provided a copy of the December 2020 Year End Performance Appraisal with his statement.

[111] Ms Otter said Mr Mougenot’s Year End Performance Appraisal was conducted by Mr Cullen, and his Performance Rating was again “Below Expectations” (i.e. D rating). Ms Otter said she attended and signed off on the review.

10 February 2021 Second PIP Review meeting

[112] Mr Cullen said on or about 10 February 2021, he conducted the next PIP review meeting. He said present at the meeting was himself, Ms Otter, Ms Bartholomew and Mr Mougenot. Mr Cullen said Mr Mougenot had his partner in the room with him as his support person. Mr Cullen provided a copy of this February PIP document with his statement.

[113] Mr Cullen said at this review he communicated to Mr Mougenot that he was unable to demonstrate the minimum required standards of performance for the role, as were outlined in the February PIP document. Mr Cullen said he explained to Mr Mougenot that he was still communicating in an unprofessional way and not in line with the Respondents standards and he had continued to be dismissive and disrespectful toward reasonable management instruction, particularly from himself. Mr Cullen said that he advised Mr Mougenot his verbal and written communication was rated at “does not meet expectations” and Mr Cullen said he set out a number of examples to demonstrate his concerns.

[114] Mr Cullen said that he advised that Mr Mougenot’s ability to meet SMEC technical design standards was rated at “meets expectations”.

[115] Mr Cullen said at this stage in the meeting he explained to Mr Mougenot that if his performance remained at the “does not meet expectations” level following the next PIP review period, then further performance management disciplinary actions up to and including the termination of his employment, may be invoked.

[116] Mr Cullen said at the conclusion of the PIP review meeting, Mr Mougenot was advised that a further review meeting would take place on 8 March 2021 and Mr Mougenot was provided with a copy of the February PIP document.

[117] Mr Mougenot asked Mr Cullen for examples as for when he did not follow reasonable management instructions. Mr Cullen referred to the PIP documents which set out the examples relied on by the Respondent.

[118] Ms Otter said on or about 10 February 2021 she attended the scheduled PIP review meeting with Mr Mougenot, Mr Cullen and Ms Bartholomew. Ms Otter said Mr Mougenot also had a support person, though she could not hear the proceedings as Mr Mougenot was wearing headphones. Ms Otter said that during this review Mr Cullen explained to Mr Mougenot that he had not demonstrated the minimum required standards of performance for the role and he provided examples to Mr Mougenot . Ms Otter said that Mr Cullen explained to Mr Mougenot that his communication and ability to accept reasonable management instruction was rated at “does not meet expectations” and he provided examples. Ms Otter said that during the meeting Mr Mougenot was still in denial that his communication and ability to take instruction were an issue. Ms Otter said he blamed others in the team and spoke very disrespectfully towards Mr Cullen.

[119] Ms Otter said that Mr Cullen explained to Mr Mougenot that his ability to meet SMEC technical design standards was rated at “meets expectations” and he discussed ways to achieve further improvement. Ms Otter said Mr Mougenot was provided with an opportunity to discuss the feedback and ask questions.

[120] Ms Otter said Mr Cullen advised Mr Mougenot that if his performance did not improve above the “does not meet expectations” level following the next PIP review period, then further disciplinary actions up to and including the termination of his employment, may be invoked.

[121] Mr Mougenot said in relation to the issue of “proactive communication of the downtime” he had no downtime at all. He said all his hours were booked worked hours, either on jobs, or cad libraries that are needed. Mr Mougenot said if they give him no work, it is not for him to take sick days to cover the fact that they can’t (or don’t want) to give him any work. Mr Mougenot further stated that there is no trust in this team.

[122] Mr Mougenot said a few weeks before being dismissed Mr Cullen told him that he had to look for work. Mr Mougenot said that was no problem, and that he shares emails around, and he had been looking for work, when having nothing to do, on and off for several years. Mr Mougenot said he never saw any emails from other drafters at the Respondent looking for work. Mr Mougenot said the other drafters team leader is providing them with work, and they do not have to look after their work. Mr Mougenot said if he had no work, he contributed on other aspects to help the team such as CAD libraries that do not exist in the system.

[123] Mr Mougenot gave evidence that Mr Cullen and the surrounding team did not try to understand and learn together. He said details he wrote back in the meeting report were never reviewed together and he never received any reply.

[124] Mr Mougenot agreed that he was aware as at 10 February 2021 that the Respondent did not at that time believe his performance including his communication and his ability to receive instruction was acceptable however he said he did not accept that. Mr Mougenot accepted that it was the Respondent’s view that if he did not improve he could be dismissed.

1 March 2021 Telephone call between Mr Cullen and Mr Mougenot

[125] The Respondent said that on 1 March 2021, Mr Cullen made a telephone call to Mr Mougenot, where Mr Mougenot verbally abused Mr Cullen and acted in an unprofessional manner by making inaccurate and derogatory comments directly about Mr Cullen and the Respondent.

[126] Mr Cullen’s evidence was that on or about 1 March 2021, he called Mr Mougenot to see how he was going, how his weekend had been, and asked if there was anything he could assist him with. Mr Cullen said Mr Mougenot then, by surprise, started to abuse him and accusing him and the Respondent of not caring about him, always making him “feel bad”, “lacking empathy”, acting like “a criminal”, and that Mr Cullen, Mr Wagenaar, and Mr Zanetti were all “out to get” him. Mr Mougenot accepted that Mr Cullen asked him how he was at the beginning of the phone call.

[127] Mr Cullen said he felt upset and on edge and said he had never before felt so verbally abused in the workplace. Mr Cullen said he was caught off guard as he began the conversation by asking a genuine “how are you going” and did not expect to be called “criminal”, or “lacking emotional intelligence” or “empathy” and being the worst person to ever work with. Mr Cullen said Mr Mougenot also mentioned that the Respondent was the worst place he has ever worked.

[128] Mr Mougenot said in his evidence that a meeting of over 20 people Mr Cullen spoke about a "Drafting Check" being "signed" by another drafter as "criminal". Mr Mougenot said they do not have the time for drafting checks, and those drafting checks are less important than updating the design, and are only, fonts, commas or dots, colours missed in some text or CAD objects, and are very minor compared to the design which they continue working on. Mr Mougenot said when being reviewed by the Senior RPEQ engineer, who gets those drawings on the deadline day, they ask for changes, that there is no time to do.

[129] Mr Mougenot said after Mr Cullen finished speaking about this point, Gavin, another major engineer, immediately mentioned that it is the Project Manager who has to organise the drafting check, not the drafter. Mr Mougenot said it is Mr Cullen who did "criminal" things for over the 5 years Mr Mougenot had been working there. Mr Mougenot said the reality is for drafters, that they are asked to change things in the design with the pressure to deliver on the same day.

[130] Mr Cullen was asked about this by Mr Mougenot. Mr Cullen said Mr Mougenot put an email signature of another employee on a drawing and the other employee was not aware of this. Mr Cullen said he told Mr Mougenot this was fraudulent, he said he may have used the word criminal. Mr Mougenot said this was raised in a team meeting. Mr Cullen said he did not use Mr Mougenot’s name but also said that it was unacceptable behaviour.

[131] Mr Mougenot put to Mr Cullen that he was not saying to him (during the phone call on 1 March) that he was criminal. Mr Cullen said he believed Mr Mougenot said words to the effect of “You said that I am a criminal, but you are the criminal”.

[132] Mr Mougenot said on the last phone call between Mr Cullen and himself, Mr Cullen asked him "How are you?", to which he replied "Depressed". He said that he was depressed because of the situation Mr Cullen puts him in. Mr Mougenot said there was no emotional understanding from his side. Mr Mougenot said Mr Cullen hung up on him after Mr Mougenot referred to the drafting check print. Mr Mougenot said Mr Cullen hung up on him, as if he was the bad one reminding Mr Cullen about what Gavin had said in this meeting that it is the PM who has to do it, not the drafters.

[133] Mr Mougenot said Mr Cullen sees himself as having accusations made against himself not realising that he was the first to start "accusing" people and having used the extreme word "criminal", to single Mr Mougenot out in front of over 20 people and in the performance review.

[134] Mr Mougenot stated that when he is working with another engineer on a design, and he asks them to have their one design done before he started drafting. He said he does this to save time as in the past, jobs were done inefficiently when a senior engineer reviewed the design and did not agree with what the junior engineer had asked the drafters to do.

[135] Mr Mougenot said in this case, that engineer called Mr Cullen, and Mr Cullen mentioned it few months after saying that Mr Mougenot wasted 1 hour of their time.

[136] Mr Mougenot gave another example of a job being split into 2 separate jobs, on the same street and given to the same contractor. Mr Mougenot said he got the second job, and was displaying long sections the same way it had been done by the other draftsperson, so as not to confuse contractors reading those drawing, and was still working on the most important part, the design under stress of time and budget. Mr Mougenot said this "presentation way" went against him under "accepting reasonable management instruction". Mr Mougenot said there was not time to do this work and the request was not clear.

[137] Mr Mougenot maintained he never verbally abused Mr Cullen. Mr Mougenot accepted he said to Mr Cullen that Mr Cullen had less empathy than other people he knew. Mr Mougenot accepted he had told Mr Cullen had lacked empathy many times including in a message through Skype. Mr Mougenot accepted he used the word “criminal” in the conversation on 1 March 2021. Mr Mougenot accepted he said in the conversation, if the senior manager said the Project Manager should do drafting checks, and not drafters, it is Mr Cullen who has done something criminal.

[138] It was put to Mr Mougenot that he complained in February 2021 he did not have enough work to do, and he accepted that. It was put to him then on 1 March 2021 he was not under stress because of too much work at that time. Mr Mougenot said it was not that he had too much work, but that he had never been asked to send emails looking for work before.

Email file Note from Mr Cullen to Mr Mougenot 2 March 2021

[139] Mr Cullen said after the call, given how unprofessional Mr Mougenot had conducted himself, Mr Cullen said he sent an email File Note to Mr Mougenot on 2 March 2021. Mr Cullen said in this File Note email, he advised Mr Mougenot that he was to attend a meeting with Mr Cullen on 9 March 2020, in line with the next PIP review meeting. Mr Cullen provided a copy of this email of 2 March 2021 with his statement.

[140] Mr Cullen said that Mr Mougenot’s behaviour during this call to him fell into the “Key Action Items” for improvement in the February PIP, and his conduct was in contravention of the SMEC Code of Conduct. Mr Cullen said Mr Mougenot’s actions during the phone call directly related to the performance concerns previously discussed with him by Mr Cullen and recorded in the PIP.

[141] In response Mr Mougenot sent an email to Mr Cullen. It was agreed the date on the email was an error, but it was sent on or after 2 March. Mr Mougenot denied saying that Mr Cullen was a criminal. It was put to Mr Mougenot that he wrote in his material that Mr Cullen can say this to him, but he cannot say it to Mr Cullen, inferring that he did call Mr Cullen a criminal. Mr Mougenot returned to referring to Mr Cullen using the word in a meeting regarding checking work at an earlier point.

[142] Mr Mougenot said there was nothing wrong with his communication and there was no understanding of the stresses he was raising. Mr Mougenot said he acknowledged when he overreacted, that was wrong, however it was all wrong it was not just him. Mr Mougenot said he never reported anything about Mr Cullen and he spoke directly to him, and Mr Mougenot said his work was not appreciated. Mr Mougenot said both Mr Cullen and himself needed to change.

Termination of employment 9 March 2021

[143] Mr Cullen said on or about 9 March 2021, the next PIP Review meeting was scheduled and took place at 11.00am. Mr Cullen said present at the meeting was himself, Ms Otter, Ms Bartholomew and Mr Mougenot. Mr Cullen said Mr Mougenot had been invited to bring a support person with him to the meeting, but he declined to do so.

[144] Mr Cullen said that during this meeting he reviewed the previous months’ performance, and he advised Mr Mougenot that his sustained pattern of unsatisfactory work performance was identified again and had remained unchanged. Mr Cullen’s evidence was that he said to Mr Mougenot that despite the many months of intensive support, monitoring, mentoring and guidance, Mr Mougenot’s performance had failed to improve to a satisfactory level.

[145] Mr Cullen said that Mr Mougenot was asked to respond to the concerns, and he was asked to explain why his employment should not be terminated. Mr Cullen said that having listened to Mr Mougenot’s responses at the meeting he ended the meeting. Mr Mougenot agreed he was given an opportunity to respond and to explain his perspective, but he believed the representatives of the Respondent were not listening.

[146] Mr Mougenot said in his oral evidence he did not have a recollection of whether he was asked why he should not be dismissed and he was in a ‘defensive mode’.

[147] Mr Cullen said that he proceeded to arrange a second meeting that afternoon and advised Mr Mougenot that he had decided to proceed to terminate his employment. Mr Cullen said that again, Mr Mougenot was asked to respond to the decision, and Mr Cullen said his response was difficult to understand and did not provide any reasonable grounds to vary the decision, as Mr Mougenot refused to accept that his performance was problematic. Mr Cullen said he confirmed that the decision would stand.

[148] Mr Cullen said that later that day, Mr Mougenot was issued with a letter notifying him of the termination of his employment effective 9 March 2021, and a copy of the letter of termination of employment dated 9 March 2021 was provided with his statement.

[149] Mr Cullen said Mr Mougenot was paid five (5) weeks’ pay-in-lieu of the contractual notice period, and this included the additional payment equivalent to 1-weeks’ pay (given he was over 45 years of age), and his statutory entitlements of accrued annual leave.

[150] Ms Otter said a further review meeting was scheduled for 9 March 2021 and Mr Mougenot was provided with a copy of the February PIP document. Ms Otter said she attended along with Mr Cullen, Ms Bartholomew and Mr Mougenot, and Mr Mougenot elected to attend without a support person.

[151] Ms Otter said that during this meeting Mr Cullen informed Mr Mougenot that his sustained pattern of unsatisfactory work performance was identified again, and had remaining unchanged, despite the ongoing support, monitoring, mentoring and guidance provided by Mr Cullen. Ms Otter said examples since the last PIP meeting were tabled and discussed, and Mr Mougenot was given a chance to respond to each example and was asked why his employment should not be terminated.

[152] Ms Otter said at the conclusion of the meeting, a subsequent meeting was held that afternoon where Mr Cullen informed Mr Mougenot of his decision to terminate the employment for ongoing poor performance.

[153] Ms Otter confirmed in her oral evidence that the issue of CAD standards was not part of the reason for dismissal and it was the issues related to communication and following directions that lead to the decision to terminate Mr Mougenot.

[154] Mr Mougenot said Mr Cullen gave no details of what he was speaking about, just a judgment, that everybody had to believe. Mr Mougenot said it was funny that his "performance" had not been met between the 2 PIP meetings, however he had mostly no work during this time and was working from home while working and contributing on CAD libraries.

[155] Mr Mougenot said he could not recall whether there was a second meeting on 9 March or not but it could have happened.

June 2021 email

[156] Mr Cullen said that on or about 3 June 2021 he became aware of an email that Mr Mougenot had circulated to various members of his team on 1 June 2021. A copy of the email was provided.

[157] The email is entitled “IMPORTANT TO ME and US – Sharing about my situation, AND one question”. Mr Cullen said the contents of the email and the attachment circulated by Mr Mougenot is filled with emotive, derogatory and accusatory allegations against Mr Cullen, others in the team and against the Respondent, and is designed to humiliate and intimidate.

[158] Mr Cullen said the contents of the documents go a long way to demonstrate the communications problems, including the inability to recognise what constituted appropriate and professional communications that was the ongoing issue faced with Mr Mougenot whilst he was an employee of the Respondent.

[159] Ms Otter said on or about 3 June 2021 she was made aware of an email that Mr Mougenot had circulated to a number of her team members that included derogatory and abusive comments about a number of other team members, including Mr Cullen. Ms Otter said she addressed the email with her team and let them know that SMEC’s confidential support services were available to them.

[160] Ms Otter said in regard to saving money, their project work and senior CAD requirements have not decreased since Mr Mougenot finished in SMEC and have in fact increased, and this has required the Respondent to recruit and bring on more expensive contract CAD staff to cover the short fall.

[161] Mr Mougenot put to Mr Cullen what was wrong with sending this email. Mr Cullen said the email was not professional and derogatory to himself and to the Respondent and went a long way to demonstrating the communications issues with Mr Mougenot.

HARSH, UNJUST OR UNREASONABLE

s.387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

[162] Mr Mougenot submitted in his previous 25 years of employment including in France and the United Kingdom he had never had issues like he had in the team under the leadership of Mr Cullen at the Respondent. Mr Mougenot submitted he had received professional awards in his earlier career. Mr Mougenot submitted Mr Cullen lacked empathy and their professional relationship did not work, there were misunderstandings and not a proper dynamic.

[163] Mr Mougenot said that in the PIP’s the CAD standards was an issue and it was not until the hearing he now learned it was not an issue. It is apparent however from the PIP’s themselves that the issue of CAD standards was no longer an issue, however it is understandable that Mr Mougenot may have understood it remained an issue as it was erroneously referred to in the termination letter.

[164] Mr Mougenot submitted that the raising of the issues regarding CAD standards tends to indicate that Mr Cullen was attempting to come up with reasons to dismiss him.

[165] The Respondent states it had a valid reason for Mr Mougenot’s dismissal. The Respondent made clear in the course of the hearing it did not rely on Mr Mougenot’s competence, including in relation to CAD standards as a basis to establish it had a valid reason for dismissal. On that basis it is unnecessary to consider the evidence in regard to those matters however it may be relevant to the extent that the Respondent relies on Mr Mougenot’s refusal to follow direction.

[166] The Respondent submits that the behaviour of Mr Mougenot on 1 March 2021, in the context of the repeated failure of Mr Mougenot to conduct himself at an acceptable level, was a valid reason for his dismissal. The Respondent submits that Mr Cullen had telephoned Mr Mougenot to see how he was going, how his weekend had been and if there was anything Mr Cullen could do to assist him. The Respondent submits this is a perfectly ordinary interaction to be expected between a team leader and employee.

[167] The Respondents submits that Mr Cullen’s evidence is that Mr Mougenot started to abuse him accusing Mr Cullen and SMEC of not caring about Mr Mougenot, always making Mr Mougenot “feel bad”, that Mr Cullen was “lacking empathy”, acting like “a criminal”, and that Mr Cullen, Mr Wagenaar, and Mr Zanetti were all “out to get” Mr Mougenot.

[168] The Respondent submits that it is readily apparent that he does not agree that he engaged in misconduct. The Respondent submits that conduct alleged by Mr Cullen is consistent with the approach of Mr Mougenot in his submissions and the Commission should find that the conduct occurred in the manner set out by Mr Cullen.

[169] The Respondent submits that Mr Mougenot’s disciplinary history includes:

a. Yelling at Mr Cullen on 20 September 2018, accusing him of having no empathy or understanding;

b. Being aggressive and derogatory towards Mr Cullen on 14 November 2019, following up with a message to Mr Cullen, comparing him to someone who was autistic with no empathy to other people.

c. Mr Mougenot’s yearend performance appraisal in December 2019 was that he was performing below expectations.

d. A formal performance improvement plan was commenced in May 2020, coupled with a first and final written warning that if his performance did not meet the required standard his employment may be terminated.

e. A review of Mr Mougenot’s performance on 10 June 2020 was that he was meeting expectations regarding SMEC technical design standards. He did not however demonstrate the required improvement in relation to communication and accepting reasonable management instruction.

f. There was a lengthy pause in the performance improvement process from August 2020 until the end of November 2020 due to Mr Mougenot’s illness.

g. Mr Mougenot’s yearend performance appraisal in December 2020 was that he was continuing to perform below expectations, particularly in relation to his communication.

h. A review of Mr Mougenot’s performance on 10 February 2021 was that he was continuing to meet expectations regarding SMEC technical design standards. He did not however demonstrate the required improvement in relation to communication and accepting reasonable management instruction.

[170] The Respondent submits that the issue identified with Mr Mougenot’s communication was that he would respond to reasonable work requests in a way which was discourteous, contained irrelevant content and language, lacked business professional norms and was off topic.

[171] The Respondents submits that on any view of the evidence as a whole, the Commission should conclude that Mr Mougenot’s communication was off topic, contained irrelevant information, lacked normal grammar conventions and was not consistent with his position. The Respondents submits that the Commission should properly conclude that there was a valid reason for Mr Mougenot’s dismissal.

[172] It was submitted in closing the Respondent is entitled to set the expected standard of communication between a manager and an employee, and in this case the lengths to which the Respondent had raised concerns with Mr Mougenot about his communication styles and methods over a lengthy period, and the final straw being evidence of the same behaviour on 1 March 2021. On that basis the Respondent said the Commission should find Mr Cullen’s account of the conversation on 1 March 2021 should be accepted as it was consistent with earlier behaviour and his submissions and evidence before the Commission.

[173] There is nothing in the evidence to suggest that there was an incident between the PIP meeting in February 2021 and 1 March 2021 that might have explained Mr Mougenot’s behaviour of in the course of the phone call, or that there was an excessive workload that may have explained his conduct as a response to stress.

[174] Mr Mougenot gave evidence that he could only work for the Respondent again if the team he worked in changed. This tends to indicate that he was not inclined to accept there were issues with his own behaviour. It appears Mr Mougenot was of the view that it is Mr Cullen who needs to change his behaviour. This is consistent with the Respondents closing submission that Mr Mougenot’s conduct through his email to staff post his termination in June 2021, and in the course of the unfair dismissal proceedings tended to support the Respondents conclusion that he would not properly acknowledge the issues with his own conduct whilst still an employee.

[175] As part of Mr Mougenot’s case he indicated that as English is not his first language this may have contributed to miscommunication is some instances. I am not inclined to accept that this issue can be relied upon as an explanation or justification for the examples of communication used by Mr Mougenot directed at Mr Cullen, or a basis of his failures to accept direction.

[176] I am also not satisfied on the basis of the evidence that the Respondent was manufacturing reasons to terminate Mr Mougenot through the PIP process as Mr Mougenot has submitted. The PIP documents provided a range of examples of areas of concern in relation to Mr Mougenot’s performance and conduct that the Respondent was concerned about. The evidence of Mr Cullen and Ms Otter was consistent and satisfies me on balance that the issues including the specific examples set out in the PIP documents with specific reference to communication skills and following reasonable management instruction were occurring, and Mr Mougenot was resisting addressing those concerns despite warnings and the PIP process itself.

[177] On the basis of the evidence I prefer Mr Cullen’s version of the conversation between him and Mr Mougenot on 1 March. Following the conduct on 1 March 2021, in the wider context of the performance management process undertaken over an extended period I am satisfied that the Respondent had a valid reason for termination based on continued failure to improve his ineffective verbal and written communication and inability to accept reasonable management instruction.

s.387(b) whether the person was notified of the reason;

[178] The Respondent said it notified Mr Mougenot of his unsatisfactory performance on numerous occasions, both orally and in writing, and both informally and formally. The Respondent said detailed PIP’s were provided to him. The Respondent said it notified Mr Mougenot that it was considering terminating his employment at the meeting with Mr Cullen, Ms Otter and Ms Bartholomew on 9 March 2021.

[179] Despite the termination letter erroneously making reference to the issue of standards despite it earlier being made clear, that Mr Mougenot’s performance was satisfactory in this area, I am satisfied that Mr Mougenot was notified of the reasons for his dismissal.

s.387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[180] The Respondent said that it repeatedly warned Mr Mougenot that his performance was

unsatisfactory:

a. verbally by Mr Cullen and followed up with an email dated 3 October 2018;

b. At Mr Mougenot’s yearend performance appraisal in December 2019;

c. At the commencement of the formal performance improvement plan in May 2020, coupled with a first and final written warning that if his performance did not meet the required standard his employment may be terminated;

d. At the review of Mr Mougenot’s performance on 10 June 2020;

e. At Mr Mougenot’s yearend performance appraisal in December 2020;

f. At the review of Mr Mougenot’s performance on 10 February 2021.

[181] The Respondent submits this is not a case where there was a lengthy period between the most recent warning and the conduct or performance resulting in the decision to dismiss.

[182] The Respondent said Mr Cullen, Ms Otter and Ms Bartholomew met and consulted with the Mr Mougenot in accordance with SMEC policy and procedures, at three (3) PIP Review feedback meetings held on 7 May 2020, 10 June 2020 and 10 February 2021, respectively. The Respondent noted the third meeting had been scheduled for 20 July 2020, but for Mr Mougenot’s absence due to illness.

[183] The Respondent said at each meeting, each issue raised was supported by facts and relevant examples gained through observations, feedback from clients and colleagues, as well as Mr Cullen and Ms Otter’s observations and experiences in managing Mr Mougenot. The Respondent said that at each PIP Review meeting Mr Mougenot was provided with an opportunity to respond to all issues raised.

[184] The Respondent said Mr Mougenot was afforded multiple opportunities to achieve sustained improvement before the decision to terminate his employment was made. The Respondent denies Mr Mougenot’s contention that there was no clear reason given for his dismissal and that he didn’t receive a dismissal letter. The Respondent said following the dismissal meeting at 11.00am. on 9 March 2021, the Manager, Mr Cullen emailed the Termination Letter to both Mr Mougenot’s SMEC email address and his personal email address (Yahoo). The Respondent said SMEC’s Information Technology records the correspondence related to the Termination Letter was sent to, and received, into both Mr Mougenot’s SMEC mailbox and the external Yahoo mailbox at 4.03pm. on 9 March 2021.

[185] Mr Mougenot accepted that meetings occurred with the Respondent but he maintained that it was only to follow a process. Mr Mougenot maintained that there were no constructive interactions, and no drafters to understand his perspective. Mr Mougenot said his reply to points, was not acknowledged, or studied, and the Respondent only moved to their next twisted points they gathered against him and his feedback was just ignored.

[186] I am satisfied from the evidence of Mr Cullen and Ms Otter support by the contemporaneous documents setting out the specific concerns being raised with Mr Mougenot as part of the PIP process, that despite the claim of Mr Mougenot that the Respondent was not constructively engaging with him, it was raising its concerns with him and he had a reasonable opportunity to respond to those concerns.

s.387(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to the dismissal;

[187] The Respondent said that at all stages of the PIP process, Mr Mougenot was offered a support person to attend with him, access to the Company’s Employee Assistance Program, including after he was notified of his dismissal, reasonable training/coaching, and the opportunity to provide written/verbal feedback. The evidence supports this.

s.387(e) if the dismissal related to unsatisfactory performance by the person, whether the person had been warned about the unsatisfactory performance before the dismissal;

[188] The Respondent said Mr Mougenot had provided responses both verbally and written for the first and final warning meeting as well as each of the PIP Review meetings. The Respondent said Mr Mougenot’s demeanour during the meetings was at times argumentative, interruptive, ignorant to instruction and dismissive to accepting constructive feedback.

[189] The Respondent said copies of each detailed PIP Review document, as a record of meeting, were provided to Mr Mougenot via email, following each meeting. The Respondent said Mr Mougenot was provided with detailed responses to each updated PIP form, following each of the PIP meetings.

[190] The Respondent said it gave Mr Mougenot ample time to improve his performance. The Respondent said Mr Mougenot demonstrated improvement regarding SMEC technical design standards, to an acceptable standard and sustaining that improved performance. The Respondent said he was given the same opportunity with respect to his communication and acceptance of management instructions.

[191] The Respondent said when Mr Mougenot was ill, it gave him additional time to improve his performance by pausing the performance improvement process until he was fully fit to perform his duties. The Respondent said throughout the performance improvement process, neither it nor Mr Mougenot identified any specific training, coaching or other support necessary to assist him to improve his communication and acceptance of management instructions.

[192] I am satisfied on the basis of the evidence that the Respondents submissions on this consideration have been made out and Mr Mougenot was warned about his performance before his dismissal.

s.387(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures followed in effecting the dismissal;

[193] The Respondent is not a small business with over 1500 employees and has internal human resource management expertise. Both s.387(f) and (g) are therefore neutral considerations in this matter.

s.387(h) any other matters that the FWC considers relevant.

[194] The Respondent submitted that Mr Mougenot was employed by it for just over 5 years. The Respondent said it had been raising performance issues with his communication for roughly half that period. The Respondents submits Mr Mougenot’s case would appear to be that he was in pain and that his actions were a response to work pressures and stress, that Mr Cullen and Ms Otter misunderstood him and that Mr Cullen’s concerns were a list of twisted points as he was looking for a reason to get rid of him.

[195] The Respondents submits Mr Mougenot does not however point to any particular incident said to have provoked his response, and his conduct towards Mr Cullen on 1 March 2021 and came in the context of a long history of Mr Mougenot behaving in that way towards Mr Cullen.

[196] The Respondent submits there is no basis for the accusation that it was out to get rid of

Mr Mougenot, and to the contrary, when Mr Mougenot demonstrated the required improvement in relation to the SMEC technical design standards that improvement was acknowledged. The Respondent submits that nor can it be said that his lengthy communications needed to be twisted to show that they were discourteous, contained irrelevant content and language lacked business professional norms and were off topic.

[197] Mr Mougenot alleges that he was dismissed to save money. The Respondents submits there is nothing before the Commission from which it could conclude that it no longer required Mr Mougenot’s job to be performed and that he was redundant, and it is also contrary to Mr Mougenot’s claim that he was always under pressure in relation to work.

[198] It is also the case that Mr Mougenot underwent a course of treatment for cancer in the later part of 2020 during which time his PIP was suspended. Mr Mougenot later received a medical clearance to return to work. His evidence included that this caused him to be fatigued when returning to work. The evidence supports a conclusion that the Respondent had taken appropriate steps to support Mr Mougenot during this period including implementing flexible working arrangements including working from home after his return to work.

Conclusion

[199] I have been satisfied on the basis of the evidence that the Respondent had a valid reason for the dismissal of Mr Mougenot, based on his conduct and performance, that he was given ample opportunity to improve that conduct and performance, such that the only conclusion is that he was unwilling or unable to improve his communication, particularly with his team leader Mr Cullen. This is not a case where it could be said there were procedural defects.

[200] Whilst it is the case that Mr Mougenot’s did undergo a period of treatment for a serious medical condition, his personal circumstances in this case do not weigh so heavily in his favour so as to render the dismissal harsh, unjust or unreasonable.

[201] Mr Mougenot did not appear to acknowledge the difficulties with his own behaviour in the course of the proceedings and that remains his view that it is primarily the Respondent that needs to change and not himself. Overall, I am satisfied that the dismissal was not unfair. On that basis the application is dismissed.

COMMISSIONER

Appearances:

Mr D. Mougenot appearing on his own behalf.
Mr B. Miles of Counsel instructed by Ms K. Quinlan for the Respondent.

Hearing details:

2021,
Brisbane:
June 28

Printed by authority of the Commonwealth Government Printer

<PR732580>

 1   Exhibit 1.

 2   Exhibit 2.

 3   Exhibit 3.

 4   Exhibit 4.